law-condemnation | eminent domain | inverse condemnation | takings claim | fees and sanctions |

CONDEMNATION & EMINENT DOMAIN

COMPENSABILITY OF TAKINGS DAMAGES When a taking occurs, all damages associated with the
taking are not necessarily compensable, County of Bexar v. Santikos, 144 S.W.3d 455, 459 (Tex. 2004),
and “diminished value is compensable only when it derives from a constitutionally cognizable injury,”
State v. Dawmar Partners, Ltd., 267 S.W.3d 875, 878 (Tex. 2008) (per curiam).  Compensability for a
particular type of condemnation damage is a question of law the Court reviews de novo.  Santikos, 144 S.
W.3d at 459.

PETITION GRANTED AND SET FOR ORAL ARGUMENT
08-0061          
THE STATE OF TEXAS v. CENTRAL EXPRESSWAY SIGN ASSOCIATES, ET AL.; from Dallas County;
5th district (05-06-00003-CV, 238 SW3d 800, 08-31-07)(condemnation case, billboards)           
[Note: This case has been set for oral argument at 9:00 a.m., January 13, 2009.]
Time allotted to argue: 20/20 minutes

RECENT EMINENT DOMAIN AND RELATED DECISIONS FROM
THE TEXAS SUPREME COURT

State of Texas v. Bristol Hotel Asset Co., No. 07-0896 (Tex. May 15, 2009)(per curiam) (condemnation,
uncompensable losses, lost revenue testimony should not have been admitted)

SWBT v. Harris County Toll Road Authority, No. 06-0933 (Tex. 2009)(Jefferson)(eminent domain, county
entity immune to claim for reimbursement of costs of telephone line relocation necessitated by toll road
project, SWBT has no vested property interest in use of public way for transmission equipment).

State of Texas v.  Dawmar Partners, Ltd., No. 07-0548 (Tex. Sep. 26, 2008)(per curiam)
(condemnation appeal, state prevails)  

State of Texas v. Brown, No. 05-0236 (Tex. Aug. 29, 2008)(Johnson)(award of fees for landowner's
expenses reversed on condemnor's petition) Justice O'Neill delivered an opinion concurring in part and
dissenting in part. (would remand case to trial court for consideration of sanctions against state for late
amendment of pleading)

FKM Partnership, Ltd. v. Bd. of Regents of Univ. of Houston System, No. 05-0661 (Tex. Jun 6, 2008)
(Phil Johnson) (condemnation, implications of reduction of amount of land to be taken on land owner's
recovery of fees, partial nonsuit)
Justice Willett delivered an opinion concurring in part and dissenting in part.

Canyon Regional Water Authority v. Guadalupe-Blanco River Authority, No. 06-0873 (Tex. May 16, 2008)
(Opinion by Paul Green) (intergovernmental dispute over easement for water extraction from lake,
condemnation power)

PR Investments and Special Retailers, Inc. v. Texas, No. 04-0431  (Tex. Feb. 15, 2008)(Justice Willett)
(condemnation proceeding, effect of change in plans for condemned property,jurisdiction of trial court)

AIC Management v. Crews, No. 05-0270 (Tex. Jan 25, 2008)(O’Neill) (eminent domain, condemnation,
sufficiency of legal description, UDJA, jurisdiction of Harris County Civil Courts at Law)
AIC MANAGEMENT v. RHONDA S. CREWS, CURTIS CALDWELL CREWS, ANNETTE CREWS, DENISE
CLAUDEN CREWS, AND CLAUDE CREWS, JR., THE HEIRS OF EMMA CREWS, VALDA CREWS, AND
EVA FAY GROSS, AND ALDINE INDEPENDENT SCHOOL DISTRICT; from Harris County; 1st district
(01-03 01178-CV, ___ S.W.3d ___, 02-03-2005) (Opinion of the First Court of Appeals - by Higley)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice O'Neill delivered the opinion of the Court.
Justice Willett filed a concurring opinion.

COURT OF APPEALS CASES IN WHICH PETITION FOR REVIEW WAS DENIED
BY TEXAS SUPREME COURT

09‑0225  
CASCOTT, LLC, ET AL. v. THE CITY OF ARLINGTON; from Tarrant County; 2nd district
(02-08-00042-CV, 278 SW3d 523, 02‑19‑09) (exercise of eminent domain authority to condemn the
properties)

07-0425
MCKINNEY INDEPENDENT SCHOOL DISTRICT v. CARLISLE GRACY LTD. AND GORDON M. GRIFFIN,
JR. REVOCABLE TRUST; from Collin County; 5th district (05-05-00625-CV, 222 SW3d 878, 04-24-07,
pet. denied Aug. 2008)(condemnation case)

08-0343
STANLEY V. GRAFF v. VERNON BERRY, M.D. WHITTLE, INDIVIDUALLY AND IN HIS CAPACITY AS
COUNTY COMMISSIONER, RUFUS WARD, JR., ELMER CATON, JOSEF HAUSLER, IN THEIR
CAPACITIES AS COUNTY COMMISSIONERS, AND THE COUNTY OF RED RIVER; from Red River
County; 6th district (06-07-00058-CV, ___ SW3d ___, 03-18-08, pet denied Jun 2008) (judicial notice,
condemnation eminent domain road construction, sufficiency of description, attorney's fees, official
capacity)
We hold the trial court erred in granting the commissioners' motion for summary judgment. The trial court
erred in taking judicial notice of the court records in cause number 134-CV-5-93. Graff has failed to
show that our decision in Graff II, which found the description of the road in Graff I was sufficient to
identify the road with reasonable certainty, was clearly erroneous. Because the commissioners failed to
prove as a matter of law that a sixty-foot right-of-way was reasonably necessary for public travel and
failed to prove as a matter of law that the new construction is in the same location, there are genuine
issues of material fact. Because we have sustained Graff's first point of error, the award of attorney's
fees must be reversed as well. We reverse the trial court's judgment, including the award of attorney's
fees, and remand this case for further proceedings consistent with this opinion.

07-1061
FORT BEND COUNTY, TEXAS v. THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY;
from Fort Bend County; 14th district (14-05-01106-CV, 237 SW3d 355, 06-21-07, pet. denied Jun 2008)
(Justice O'Neill not sitting) (condemnation eminent domain, road easement, federal preemption)
Appellant, Fort Bend County, appeals the judgment awarding the Burlington Northern and Santa Fe
Railroad Company $90,756.51 as reimbursement of expenditures in the adjustment and relocation of an
eligible utility facility, required by the County's condemnation of land for a larger railroad crossing.  In its
sole issue, the County argues the trial court erred in ordering the County to reimburse Burlington for its
costs in improving the crossing.  Burlington contends that, assuming the court had jurisdiction, the award
for the crossing was proper.  In four cross-issues, Burlington argues: (1) the trial court erred in denying
its plea to the jurisdiction because the condemnation of a roadway easement across an active passing
track/staging facility is preempted under the Interstate Commerce Commission Termination Act ("ICCTA");
[1] (2) the County's failure to authorize the acquisition by condemnation of the easement caused a lack
of condemnation jurisdiction; (3) the trial court erred in granting injunctive relief; and (4) the trial court
erred in the statutory construction of Section 251.102 of the Texas Transportation Code.[2]  Because we
find the County is federally preempted under the ICCTA from condemning a public crossing that cuts
Burlington's passing track, we vacate the trial court's judgment and dismiss the case.

06-1051  
ELDORADO PARK, LTD. v. CITY OF MCKINNEY, TEXAS; from Collin County; 11th district
(11-05-00259-CV, 206 S.W.3d 185, 11-02-06)(condemnation)
Appellant, the City of McKinney, Texas, sought to condemn property owned by appellee, Eldorado Park,
Ltd., in connection with a roadway project.  The trial court appointed three special commissioners to
assess Eldorado Park's damages resulting from the condemnation.  At the hearing before the special
commissioners, both parties presented expert testimony from property value appraisers on the damages
issues.  The expert appraisers relied on a 1996 Federal Emergency Management Agency (FEMA) Letter
of Map Revision to determine the portion of the subject property included in the floodplain.  The special
commissioners entered an award of damages to Eldorado Park.

The City appealed the special commissioners' award by filing objections with the trial court, and the trial
court placed this cause on its docket.  The City designated a new expert appraiser to testify on the
damages issues at trial.  The City's new expert relied on a document entitled Cottonwood Creek Master
Drainage Study for the City of McKinney (2001 Master Drainage Study) to determine the portion of the
subject property included in the floodplain.  The 2001 Master Drainage Study doubled the amount of
floodplain acreage in the subject property.  Eldorado Park filed a plea to the jurisdiction arguing that the
City's use of the 2001 Master Drainage Study materially changed the issues presented to the special
commissioners and, therefore, deprived the trial court of subject-matter jurisdiction.  The trial court
granted Eldorado Park's plea and entered a judgment adopting the special commissioners' findings and
award.  The City appeals.  Because the City's designation of a new expert witness and reliance on the
2001 Master Drainage Study did not deprive the trial court of subject-matter jurisdiction, we reverse the
trial court's judgment and remand this cause for further proceedings consistent with this opinion.  

07-0866
STATE OF TEXAS v. FIESTA MART, INC.; from Harris County; 14th district
(14-06-00826-CV, ___ SW3d ___, 07-03-07, pet. denied April 2008)(condemnation, inverse
condemnation claim, impaired access, relocation benefit, exhaustion of administrative remedies, lease
holder)
The State of Texas brings this interlocutory appeal from a county court decision denying its plea to the
jurisdiction.  In five issues, the State complains that the court erred in denying its plea to the jurisdiction
because (1) Fiesta, as a lessee of the property, does not have an ownership interest in the property
being seized, (2) Fiesta cannot recover lost profits because it has not alleged impairment of access, and
(3) Fiesta has failed to exhaust its administrative remedies in seeking relocation benefits.  We affirm.